Citation Nr: 0819731
Decision Date: 06/17/08 Archive Date: 06/25/08
DOCKET NO. 04-32 928 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to an increased initial rating for a dental
injury as a result of facial surgery, currently rated as 50
percent disabling.
2. Entitlement to service connection for other residuals of
facial surgery, to include scarring from a bone graft.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jennifer Hwa, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1975 to
October 1978.
This matter comes before the Board of Veterans' Appeals
(Board) from an October 2003 rating decision of a Department
of Veterans Appeals (VA) Regional Office (RO) that granted
service connection and assigned a 50 percent disability
rating for a dental injury as a result of facial surgery,
effective April 22, 2002. The veteran testified before the
Board in September 2007.
The Board notes that in her December 2003 Notice of
Disagreement, the veteran appears to have applied for an
earlier effective date for the award of service connection
for her dental injury as a result of facial surgery. The
Board refers this matter to the RO for appropriate action.
Additionally, the veteran testified in a September 2007
travel board hearing that as a result of her surgery, she
suffered from psychiatric disorders, tinnitus, a breathing
disorder, loss of taste, and paresthesia of the lips. The RO
should evaluate these other manifestations of a dental injury
as a result of facial surgery for initial ratings pursuant to
the provisions of 38 U.S.C.A. § 1151.
The issue of entitlement to service connection for other
residuals of facial surgery, to include scarring from a bone
graft, is addressed in the REMAND portion of the decision
below and is REMANDED to the RO via the Appeals Management
Center in Washington, DC.
FINDING OF FACT
The veteran's dental injury as a result of facial surgery is
manifested by loss of more than half of the maxilla and is
replaceable by prosthesis.
CONCLUSION OF LAW
The criteria for a rating higher than 50 percent for a dental
injury as a result of facial surgery have not been met. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.150, Diagnostic
Codes (DCs) 9905, 9913, 9914, 9915, 9916 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Increased Rating
Post-service VA and private medical records dated from
September 1979 to June 1984 show that in December 1980, the
veteran received surgical treatment for correction of a
developmental deformity of her jaw. Complications to her
surgery included severing of the right inferior alveolar
nervovascular bundle, which was reproximated prior to
surgical closure, and bigeminy on induction and several times
during the surgery. In July 1981, a second surgical
procedure was performed for removal of the scar band in the
right buccal mucosa, removal of a stainless steel wire from
the superior border of the body of the mandible, and
osteoplasty. A March 1983 letter from a private treating
physician reported that gross dental malocclusion secondary
to malunions of the maxillary and mandibular osteotomies had
occurred as the result of the veteran's surgeries, along with
gross facial asymmetry and facial pain, temporomandibular
joint dysfunction, limitation in the range of movement of the
mandible, paresthesia over the distribution of the third
division of the trigeminal nerve bilaterally, and anxiety.
She was to receive orthodontic therapy in order to coordinate
the dental arches for further jaw surgery, and after surgery,
she was to receive additional orthodontic treatment as well
as restorative dentistry to finalize the occlusion. This
injury was found to be a result of VA treatment and it was
determined that compensation was payable for it. 38 U.S.C.A.
§ 1151 (West 2002 and Supp. 2007).
VA medical records dated from April 2004 to September 2007
show that the veteran received intermittent dental treatment.
She underwent treatment for gingivitis/periodontal disease, a
palpable asymptomatic mass in the left submandibular region,
full mouth debridement, and crown insertions and restorations
for several teeth. There is no indication that she loss more
than half the maxilla which is not replaceable by prosthesis.
Ratings for service-connected disabilities are determined by
comparing the symptoms the veteran is presently experiencing
with criteria set forth in VA's Schedule for Rating
Disabilities, which is based, as far as practically can be
determined, on average impairment in earning capacity. 38
U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). Separate diagnostic
codes identify the various disabilities. When a question
arises as to which of two ratings apply under a particular
diagnostic code, the higher rating is assigned if the
disability more closely approximates the criteria for the
higher rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (2007). After careful consideration of the
evidence, any reasonable doubt remaining is resolved in favor
of the veteran. 38 C.F.R. § 4.3 (2007). Also, when making
determinations as to the appropriate rating to be assigned,
VA must take into account the veteran's entire medical
history and circumstances. 38 C.F.R. § 4.1 (2007); Schafrath
v. Derwinski, 1 Vet. App. 589, 592 (1995). The Board will
also consider entitlement to staged ratings to compensate for
times since filing the claim when the disability may have
been more severe than at other times during the course of the
claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999);
Hart v. Mansfield, 21 Vet. App. 505 (2007).
Under DC 9905, limitation of motion of the temporomandibular
articulation, a 10 percent rating is assigned for an inter-
incisal range of 31 to 40 mm. A 10 percent rating is also
assigned when range of lateral excursion is zero to 4 mm. A
20 percent rating is assigned for an inter-incisal range of
21 to 30 mm, a 30 percent rating is assigned for an inter-
incisal range of 11 to 20 mm, and a 40 percent rating is
assigned for an inter-incisal range of 0 to 10 mm. 38 C.F.R.
§ 4.150, DC 9905 (2007). The note to Diagnostic Code 9905
provides that ratings for limited inter-incisal movement
shall not be combined with ratings for limited lateral
excursion. 38 C.F.R. § 4.150, DC 9905.
Loss of teeth due to loss of substance of the body of the
maxilla or mandible is rated under 38 C.F.R. § 4.150,
Diagnostic Code 9913. The criteria for a compensable
disability rating are based on whether the lost masticatory
surface can or cannot be restored by a suitable prosthesis.
If the lost masticatory surface cannot be restored, the
diagnostic code provides a maximum 40 percent disability
rating for the loss of all teeth, a 30 percent rating for the
loss of all upper teeth or all lower teeth, a 20 percent
rating for the loss of all upper and lower posterior or upper
and lower anterior teeth, and a 10 percent rating for the
loss of all upper anterior or lower anterior teeth. These
ratings apply only to bone loss through trauma or disease,
such as osteomyelitis, and not to the loss of the alveolar
process as a result of periodontal disease, since such loss
is not considered disabling. 38 C.F.R. § 4.150, DC 9913
(2007).
Under Diagnostic Code 9914, loss of more than half of the
maxilla, a 50 percent rating is assigned when there is
evidence of loss of more than half of the maxilla replaceable
by a prosthesis and a 100 percent rating is assigned when the
loss of more than half of the maxilla is not replaceable by
prosthesis. 38 C.F.R. § 4.150, DC 9914 (2007).
Under Diagnostic Code 9915, loss of half or less of the
maxilla, a zero percent rating is assigned for loss of less
than 25 percent of the maxilla if replaceable by prosthesis.
A 20 percent rating is assigned for loss of less than 25
percent of the maxilla if not replaceable by prosthesis.
Where the loss is between 25 and 50 percent, a 30 percent
rating is assigned if the loss is replaceable by prosthesis,
and a 40 percent rating is assigned if the loss is not
replaceable by prosthesis. 38 C.F.R. § 4.150, DC 9915
(2007).
Under Diagnostic Code 9916, malunion or nonunion of the
maxilla, a zero percent rating is assigned for slight
displacement, a 10 percent rating is assigned for moderate
displacement, and a 30 percent rating is assigned for severe
displacement. 38 C.F.R. § 4.150, DC 9916 (2007).
Under the schedular criteria of DC 9905, the maximum rating
for limitation of motion of the temporomandibular
articulation is 40 percent. The maximum rating under DC
9913, loss of teeth due to loss of substance of the body of
the maxilla or mandible, and DC 9915, loss of half or less of
the maxilla, is 40 percent. The maximum rating under DC
9916, malunion or nonunion of the maxilla, is 30 percent. 38
C.F.R. § 4.150, DCs 9905, 9913, 9915, 9916. Therefore,
because the veteran's dental injury as a result of facial
surgery already exceeds the maximum ratings under DCs 9905,
9913, 9915, and 9916, she is not entitled to a rating higher
than 50 percent under these diagnostic codes, and an
increased rating is not warranted under these diagnostic
codes.
Under DC 9914, a 100 percent rating is assigned when the loss
of more than half of the maxilla is not replaceable by
prosthesis. 38 C.F.R. § 4.150, DC 9914. In this case, the
medical evidence of record does not show that the veteran has
loss of more than half of the maxilla that is not replaceable
by prosthesis. The VA medical records show that while there
is loss of maxilla, the veteran has had crowns and
resporation of teeth and is currently treated with these
prosthetic devices. Therefore, an increased rating under DC
9914 is not warranted.
In sum, the weight of the credible evidence demonstrates that
the veteran's dental injury as a result of facial surgery did
not warrant a rating in excess of 50 percent disabling for
the period under consideration. As the preponderance of the
evidence is against the claim for an increased rating, the
claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Duties to Notify and Assist the Appellant
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159
(2007). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." Pelegrini v. Principi, 18
Vet. App. 112 (2004).
Here, the RO sent correspondence in May 2003 and March 2006
and a rating decision in October 2003. These documents
discussed specific evidence, the particular legal
requirements applicable to the claim, the evidence
considered, the pertinent laws and regulations, and the
reasons for the decisions. VA made all efforts to notify and
to assist the appellant with regard to the evidence obtained,
the evidence needed, the responsibilities of the parties in
obtaining the evidence, and the general notice of the need
for any evidence in the appellant's possession. The Board
finds that any defect with regard to the timing or content of
the notice to the appellant is harmless because of the
thorough and informative notices provided throughout the
adjudication and because the appellant had a meaningful
opportunity to participate effectively in the processing of
the claim with an adjudication of the claim by the RO
subsequent to receipt of the required notice. There has been
no prejudice to the appellant, and any defect in the timing
or content of the notices has not affected the fairness of
the adjudication. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006) (specifically declining to address harmless error
doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473
(2006). Thus, VA has satisfied its duty to notify the
appellant and had satisfied that duty prior to the final
adjudication in the April 2004 statement of the case.
In addition, all relevant, identified, and available evidence
has been obtained, and VA has notified the appellant of any
evidence that could not be obtained. The appellant has not
referred to any additional, unobtained, relevant, available
evidence. VA has not obtained a medical examination with
respect to the loss of maxilla because the existing medical
evidence is clear and is sufficient to rate the claim. See
38 C.F.R. § 3.159(c)(4) (2007). Thus, the Board finds that
VA has satisfied both the notice and duty to assist
provisions of the law.
ORDER
An increased initial rating for a dental injury as a result
of facial surgery is denied.
REMAND
Additional development is needed prior to further disposition
of the claim for service connection for other residuals of
facial surgery, to include scarring from a bone graft. VA's
duty to assist includes a duty to provide a medical
examination or obtain a medical opinion only when it is
deemed necessary to make a decision on the claim.
38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2007);
Robinette v. Brown, 8 Vet. App. 69 (1995). The record
reflects that the veteran suffers from scarring in the right
hip, but it remains unclear whether the scarring in the right
hip is related to the bone graft taken from her hip for her
facial surgery.
In a June 1981 VA medical report, the physician noted that
the veteran had a scar at the right hip from a bone graft
that was widening with elevation. The veteran testified at a
September 2007 travel board hearing before the Board that she
had scars on both of her hips from the bone grafts for her
facial surgery, and that the scar on her right hip was larger
and longer. She also testified that she had a large scar in
the inside of her mouth that stretched from the upper jaw to
the lower jaw. There is currently no competent medical
opinion in the veteran's file as to whether her other
residuals of facial surgery, to include scarring from a bone
graft, is related to her service-connected dental injury as a
result of facial surgery. In order to make an accurate
assessment of the veteran's entitlement to service connection
for her disability, it is necessary to have a medical opinion
discussing the relationship between her disability and her
service-connected injury based upon a thorough review of the
record.
Because a VA examiner has not specifically opined as to
whether or not the veteran's residuals of facial surgery, to
include scarring from a bone graft, are related to her
service-connected dental injury as a result of facial surgery
after a review of the evidence of record, the Board finds
that an examination and opinion addressing the etiology of
this disorder is necessary in order to fairly decide the
merits of the veteran's claim.
Accordingly, the case is REMANDED for the following actions:
1. Schedule the veteran for a VA
examination to determine whether there
is any relationship between her current
residuals of facial surgery, to include
scarring from a bone graft, and her
service-connected dental injury as a
result of facial surgery. The examiner
should provide an opinion as to whether
it is at least as likely as not (50
percent probability or greater) that
any current residuals of facial
surgery, to include scarring from a
bone graft, are etiologically related
to the dental injury she sustained as a
result of facial surgery. If
necessary, the examiner should attempt
to reconcile the opinion with the
medical opinions of record. The
rationale for all opinions expressed
should be provided. The claims folder
should be made available to the
examiner for review in conjunction with
the examination and the examination
report should note that review.
2. Then, readjudicate the claim for
service connection for other residuals
of facial surgery, to include scarring
from a bone graft. If the decision
remains adverse to the veteran, issue a
supplemental statement of the case and
allow the appropriate opportunity for
response. Thereafter, return the case
to the Board.
The appellant has the right to submit additional evidence and
argument on the matter the Board is remanding. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
ROBERT C. SCHARNBERGER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs